People v. Cooper — 6 Hill & Den. 516

Majority

p. 516

The People vs. Cooper and others.

Headnote

The bridges erected pursuant to the fourth section of the act passed April 5th, 1823, authorizing the construction of a basin in the city of Albany, (Sess, L. of ’23, p. 128,) are to be kept in repair by the persons owning lots on the pier, who are punishable by indictment for omitting to repair. ■

Certiorari to the Albany mayor’s court. The defendants were indicted for not keeping in repair the Columbia street bridge, over the Albany basin, extending from the foot of the street to the pier. On the trial, the defendants admitted'that the bridge in question was one of those erected pursuant to the 4th section of the act of April 5th, 1823 ; (Sess. L. of 1823, p. 129;) and that the defendants were owners of pier-lots in severalty. The proof was full and satisfactory that the bridge was in a had condition, and unsafe to travel over either for man or beast. The-extreme ends of the pier connect with wharves built on the west shore of the Hudson, thus forming the basin over which the bridge in question was erected. When the testimony closed, the counsel for the defendants insisted that they were entitled to an acquittal; but the court ruled otherwise, holding that they were bound to keep the bridge in repair. The defendants excepted, and a verdict was rendered against them. Judgment was suspended and the proceedings brought here by certiorari pursuant to 2 R. S. 736, § 27.

J V. L. Pruyn & M. T. Reynolds, for the plaintiffs in error.

H. G. Wheaton, (district attorney) for the people.

The act of 1823, which provided for the construction of the Albany basin, and granted certain rights and privileges to the association that’constructed the same, made it a condition of the grant that they should erect the necessary bridges for the public accommodation, extending from the termination of some of the public streets, over the basin to the contemplated pier. (Sess. L. of 1823, p. 128, §§ 4, 5,9.)

p. 517

This of itself virtually implies an obligation to keep the bridges in good travelling and business condition, so long as the proprietors are in the use and enjoyment of the privileges of the grant. It is a continuing condition, co-extensive in point of duration with the grant itself. (The King v. The Inhabitants of Kent, 13 East, 220; Woolrych On Ways, 205, 6; Rose. Cr. Ev. 249, 250.)

If any doubt about the obligation of the pier-owners to keep these bridges in repair could be raised upon the wording of the act of 1823, that of 1835, providing for the improvement of the basin, should be regarded as putting it at rest. (Sess. L. of 1835, p. 171.) By this act, the city of Albany was authorized to enlarge the entrances into the basin, to cause the lock and bulkhead to be removed at the south end of the same, and to widen the draws in the bridges over the basin. The act also provided as follows: “The said bridges, after they are widened as aforesaid, shall not be left in a worse state and condition than they are in at the time the alteration is commenced; and if they are improved in value, such improved value shall be ascertained by the commissioners to be appointed under this act, and the amount thereof shall be paid by the pier-owners <fcc.: and the said bridges, after the aforesaid improvements, shall be maintained, kept in repair and tended in the same manner as they now are by law required to be tended, kept in repair and maintained.” (Id. §§ 1, 2.)

Among the privileges extended to the pier-owners, as an equivalent for the burdens imposed, is the right to one half of the tolls collected from vessels navigating the Hudson, and entering the basin; together with all the tolls charged upon canal boats entering the same, as well as wharfage for vessels lying outside of the pier. (Sess. L. of 1823, p. 130, 1, §§ 6, 9.)^[1]

The obligation of the pier-owners to repair the bridges in question was not doubted by us in the case of Smith v. The

(a) (a) See The Mayor &c. of Albany v. Trowbridge and others, ( 5 Hill, 71 .)

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Comptroller, ( 18 Wend. 659 ,) where the duty of keeping the bed of the basin in repair came under consideration, and the question as to keeping the bridges in repair was incidentally touched. (Id. 662, 663.)

New trial denied.